New trend in healthcare litigation in disclosing risk-management materials

The lines of doctor patient confidentiality have been blurred with a recent trend in healthcare litigation. According to the national law firm LeClairRyan, plaintiff attorneys have been winning access to information and materials that have been long deemed as internal and protected. Healthcare and hospital risk management now needs to reassess the strength of their policies.

LeClairRyan’s senior counsel Patrick J. Hurd states, “The trend toward increasing disclosure of risk-management materials includes documents pertaining to investigations of incident reports and unanticipated outcomes. That means fact-gathering as a result of an incident or other problem associated with potential patient harm may indeed be subject to disclosure—a troubling trend for risk managers in the healthcare field.”

This recent trend has been reflected in the outcome of cases. Most recently, the George Rauchfuss v. Roger E. Shultz, MD, et al. case forced the hospital to disclose internal risk management materials for the plaintiff’s review. Despite the hospital’s refutation claiming the information was protected, the judge ruled it was within the now-deceased patient’s right to access the materials.

Earlier cases, such as the Eason v. Sentara CarePlex Hospital, Sentara Hospitals, et al., faced similar outcomes. According to Donna Foster, a shareholder of LeClairRyan’s Richmond office, in this case, the judge cited “an inexorable march to more disclosure” or the risk-management materials.

Hurd advises that in response, risk-management professionals should ensure that their policies and procedures stick to the facts. He states, “While the likes of mental impressions, conclusions, opinions or legal theories can be redacted, you cannot assume that they will be. If the purpose of an investigation is to gather facts in the wake of an incident, then the training, policies and procedures should hew closely to that purpose, never straying into matters of conjecture or opinion.”

“Healthcare organizations must preserve their ability to take factual information and place it in the hands of quality review organizations. This process necessarily involves evaluating, assessing and even opining about how changes in policies, procedures, processes, training, education and credentialing could improve patient safety and quality of care,” continues Hurd. Despite the efforts of plaintiffs’ attorneys to access risk-management materials, Hurd strongly advises to resist them.